WATCH THIS SPACE

June 30th, 2010 by Timothy Pitt-Payne QC

The Coalition’s Programme for Government contains a great deal that is of interest to information lawyers: see here.  But when and how will any of this be given legislative effect?

The Queen’s Speech was delivered on 25th May 2010. The website of the Prime Minister’s office gives a list of the proposed Bills , with further information about each one. Three of the proposed Bills have potential implications for information law.

(i) The Public Bodies (Reform) Bill will enhance the transparency and accountability of quangos: though it is not clear as yet whether enhanced information access rights will play a role in this.

(ii) The Decentralisation and Localism Bill will (among other matters) require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.

(iii) The Freedom (Great Repeal) Bill is intended to cover a wide range of subjects, to be announced in due course: it may include an extension to the scope of FOIA, and also various provisions in relation privacy (e.g. relating to CCTV cameras, and the DNA database).

Of these Bills, it is the third that is likely to be much the most significant. 

UNFINISHED BUSINESS

June 30th, 2010 by Timothy Pitt-Payne QC

Various changes were made to FOIA by the Constitutional Reform and Governance Act 2010, which was passed during the “wash up” at the end of the last Parliament.  See section 46 of and Schedule 7 to the Act. In particular:

• The exemption in section 37(1) of FOIA (relating to communications with the Sovereign and with other members of the Royal Family) was extended. In relation to the Sovereign and the heir to the Throne, the exemption was made absolute .

• The period at which a record becomes a “historical record” was altered (this is often referred to as the “30 year rule”). Under FOIA as originally enacted, a record became a historical record at the end of 30 years beginning with the year following that in which it was created: see FOIA section 62(1). Information contained in a historical record could be exempt by virtue of sections 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43: see FOIA section 63(1). Under the 2010 Act the period of 30 years is reduced to 20 years . Provision is made for a 10 year transitional period in introducing this change . However, in respect of section 36 (so far as it relates to certain information concerning Northern Ireland), section 28, or section 43, the time after which these exemptions can no longer be relied upon will remain 30 years not 20 years .

The reforms to the 30 year rule followed the Dacre Review, published on 29th January 2009 (see our earlier post here).

As yet it remains unclear when, or whether, these amendments will be brought into force.  This is a significant piece of unfinished business left over from the last Parliament.

LATE EXEMPTIONS – THE LATEST TWIST

June 30th, 2010 by Anya Proops

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.

WITHHOLDING INFORMATION HELD FOR PURPOSES OF JOURNALISM

June 25th, 2010 by Anya Proops

The BBC is an organisation which is subject to the duties imposed under FOIA only in respect of information held ‘for purposes other than those of journalism, art or literature’ (Part VI of Schedule 1 to FOIA). On Wednesday, the Court of Appeal handed down a judgment which considered the question of how information held by the BBC should be approached if it was held for a number of different purposes, including but not limited to journalistic purposes – see the judgment here. The Court of Appeal held, irrespective of whether the information was held for multiple purposes, provided that one of the purposes included a genuine journalistic purpose, the information was exempt from the application of the duties embodied in FOIA. In reaching this conclusion, the Court of Appeal rejected the proposition that the question whether the information should be disclosed should be decided by reference to the ‘dominant purpose’ for which the information was held. The Court of Appeal also gave guidance on the meaning of the concept of ‘journalism’. In particular, it agreed with the tribunal that the three elements of functional journalism were (a) the collection, writing and verification of material; (b) the editing and presentation of material for publication; (c) the upholding of journalistic standards by supervision, training and review of journalists and their work. The Court of Appeal went on to hold that the BBC had been entitled to treat a report examining the BBC’s coverage of events in the Middle East as falling within the journalism exemption. In reaching this conclusion, the Court of Appeal confirmed that the fact that the report had been used by the BBC for strategic managerial purposes did not prevent it falling within the journalism exemption.

PRIVACY ACROSS THE POND

June 25th, 2010 by Anya Proops

On Thursday, the US Supreme Court unanimously held that a Police Chief did not violate a police officer’s 4th amendment rights by reading personal text messages which the officer had send via a pager provided to him by his employer – see the judgment here. The 4th amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts. The text messages were sent on a pager provided by the officer’s employer, they included a number of sexually explicit messages. The texts were reviewed as part of a process of examining whether officers were using the pagers excessively for personal use. In a judgment which rejected a broad right of privacy for workers, the Supreme Court recognised that interferences with privacy may be justified where there is a reasonable suspicion that rules are being breached by the employee. Notably, the Supreme Court recognised that, in an age of fast-evolving technology, the law of privacy should develop flexibly rather than through the introduction of broad, rigid rules.

VEXATIOUS REQUESTS

June 24th, 2010 by Timothy Pitt-Payne QC

FOIA requesters can be very difficult to deal with. Some may bombard public authorities with requests, to the point where they disrupt the authority’s ordinary work, perhaps with an obsessive focus on a particular issue. Some will use FOIA to try and re-open matters that have already been examined in detail; and it is impossible to achieve closure, because each item of information provided simply becomes a starting-point for more questions. How should public authorities cope with this kind of behaviour?  The obvious recourse is to FOIA section 14(1), which enables a public authority to refuse to answer a request if it is vexatious.

The Information Commissioner has issued guidance on vexatious and repeated requests (last updated in December 2008), which identifies five questions:

- Can the request fairly be seen as obsessive?
- Is the request harassing the authority or causing distress to staff?
- Would complying with the request impose a significant burden?
- Is the request designed to cause disruption or annoyance?
- Does the request lack any serious purpose or value?

According to the Commissioner, a public authority should generally be able to make out a reasonably strong case under at least two of these headings, if it is to reject a request as vexatious.

Two recent Tribunal decisions consider whether requests were rightly treated as vexatious.

In Rigby v Information Commissioner and Blackpool, Flyde and Wyre Hospitals NHS Trust the requester’s underlying complaint was about his mother’s death in hospital. He complained to the Healthcare Commissioner about the treatment given, and they upheld the complaint and made a number of recommendations for action by the Trust. He then made a series of FOI requests about the implementation of those recommendations. The Trust eventually informed him that it would no longer correspond with him about his underlying complaint, and that it was invoking its “Vexatious Complaints Policy” (“the Policy”). The requester then made a FOIA request for information about the introduction and amendment of the Policy; this request was rejected as vexatious by the Trust. The Commissioner upheld the Trust’s position, and the requester appealed to the Tribunal.

The Tribunal set out some general principles at §§27-32. It considered that the Commissioner’s guidance, and the five considerations that it identified, were useful, although they should not lead to an overly structured approach.

 
The Tribunal referred to a number of the earlier cases, and set out the following principles:

• Section 14(1) is concerned with whether the request is vexatious in terms of the effect of the request on the public authority, and not whether the applicant is vexatious.

• In the absence of a definition of “vexatious” in FOIA, it must be assumed that Parliament intended the term to be given its ordinary meaning. By its ordinary meaning, the term refers to activity that “is likely to cause distress or irritation, literally to vex a person to whom it is directed”.

• The focus of the question is on the likely effect of the activity or behaviour. Is the request likely to vex?

• For the request to be vexatious, there must be no proper or justified cause for it.

• It is not only the request itself that must be examined, but also its context and history. A request which when taken in isolation, is quite benign, may show its vexatious quality only when viewed in context. That context may include other requests made by the applicant to that public authority (whether complied with or refused), the number and subject matter of the requests, as well as the history of other dealings between the applicant and the public authority. The effect a request will have may be determined as much, or indeed more, by that context as by the request itself. This is in marked contrast to other types of FOIA appeals where the Tribunal is said to be strictly applicant and motive blind.

• The standard for establishing that a request is vexatious should not be set too high. Equally, however, it should not be set too low. The judgment that section 14(1) calls for is balancing the need to protect public authorities from genuinely vexatious requests on the one hand, without unfairly constraining the legitimate rights of individuals to access information.

The Tribunal then gave a series of examples of considerations that had been held relevant in the decided cases, as follows:

• where the request forms part of an extended campaign to expose alleged improper or illegal behaviour in the context of evidence tending to indicate that the campaign is not well founded or has no reasonable prospect of success;

• where the request involves information which has already been provided to the applicant;

• where the nature and extent of the applicant’s correspondence with the authority suggests an obsessive approach to disclosure;

• where the tone adopted in correspondence by the applicant is tendentious and/or haranguing and demonstrates that the applicant’s purpose is to argue and not really to obtain information;

• where the correspondence could reasonably be expected to have a negative effect on the health and well-being of the employees of the public authority;

• where the request, viewed as a whole, appears to be intended simply to reopen issues which have been disputed several times before, and is, in effect, the pursuit of a complaint by alternative means;

• where responding to the request would likely entail substantial and disproportionate financial and administrative burdens for the public authority;

• where the same requests have been made repeatedly, or where on repetition, the particulars of the requests have been varied making it difficult to know exactly what the requester is seeking and making it less likely that the request can be satisfied; and

• where providing the information requested previously has tended to trigger further requests and correspondence, making it unlikely that a response ending the exchange of correspondence could realistically be provided.

The Tribunal agreed that this particular request was vexatious. On its face it was straightforward; but viewed in context it was part of a continuing campaign relating to the Trust’s treatment of  the requester’s mother, and that campaign had become obsessive. Any response would have been likely to trigger further requests. There had been numerous previous requests: according to the Commissioner, the Trust had fielded 56 separate requests from the Appellant on 16 different dates, though the requester disputed these figures. The Tribunal accepted that, whatever the requester’s intentions, the effect of his requests had been to vex, that is, to cause distress or irritation, given the language of the requests and the repeated allegations of bad faith against Trust employees.

In Young v Information Commissioner the requester was an individual who had been prosecuted and convicted. He subsequently made a number of complaints about his arrest and detention, which were considered by the Independent Police Authority. A FOIA request to the relevant police force was rejected as vexatious, and the Commissioner upheld the authority’s handling of the request. On appeal, the Tribunal approved the approach taken in Rigby at §§27-32. It considered that the request was obsessive, might in some respects involve harassment of the authority’s staff, and lacked serious purpose or value. On balance (though narrowly) the Tribunal accepted that the request was vexatious. However, the Tribunal emphasised that it was not suggesting that the requester was himself vexatious, and did not doubt that he sincerely believed himself to have been badly wronged.

The last point is important. Section 14(1) is about vexatious requests, not vexatious people. There is no power to treat someone as a vexatious requester (i.e. as a person who is no longer entitled to make FOIA requests to the authority). Each individual request must be considered on its merits. And of course the decision to treat a request as vexatious may lead to a complaint to the Commissioner, and then an appeal to the Tribunal. Hence, if a request is easy to answer, it may well be less time-consuming to respond to it rather than to treat it as vexatious – even where the latter course would be justifiable.

 

 

PATIENT INFORMATION – MADE FOR SHARING?

June 17th, 2010 by Timothy Pitt-Payne QC

Sharing patient information in the NHS has proved highly controversial.  We posted about this subject here a while back.  Now there’s a new report from UCL researchers, suggesting that two key recent NHS IT programmes for handling patient information have so far delivered only modest benefits.   A short summary appears here, with links to the executive summary and the full report.  A research paper based on the findings has been published in the BMJ.

The three year UCL project looked at the Summary Care Record (SCR) and at Healthspace, both introduced as part of the NHS National Programme for IT. 

The SCR is an electronic summary of key health data, taken from GP records and other sources, and available to a range of NHS staff.   According to the UCL report, very few people had chosen to opt out; less than 1% of those who had been sent the relevant information.  But SCRs were not yet widely used; even where available, they were only accessed in 21% of clinical encounters.  So far there was little evidence that SCRs improved patient safety or reduced consultation length or hospital admissions.

HealthSpace is a tool that allows patients to update their own health information, plan healthcare appointments, and contact their GP via a secure internet connection.  So far, take up has been very low.  According to the UCL study only one person in 200 who was invited to open a basic account did so, and only one in 1000 opened an advanced account.

The report’s lead author, Professor Greenhalgh, is quoted as saying:  “This reseach shows that the significant benefits anticipated for these programmes have, by and large, yet to be realised – and that they may be acheived only at high cost and enormous effort … It serves to demonstrate the wider dilemma of national databases:  that scaling things up doesn’t necessarily make them more efficient or effective.”  

VETTING SCHEME HALTED

June 15th, 2010 by Timothy Pitt-Payne QC

According to a report on the BBC website this morning, implementation of the Safeguarding Vulnerable Groups Act 2006 is to be put on hold.  The Act introduces a requirement that a wide range of individuals working with children or vulnerable adults must register with the Independent Safeguarding Authority (ISA).  Registration was set to begin on 26th July, and was intended eventually to cover some 9 million people.  However, today the Government will announce that registration will be halted, pending a review of the 2006 Act, which is expected to lead to a scaling-back of the scheme.

The ISA will continue to be responsible for operating the two barring lists set up under the 2006 Act, which prohibit listed individuals from working with children and with vulnerable adults respectively.  And the provisions for standard and enhanced CRB checks (under Part V of the Police Act 1997) will continue to operate as before.

 

PRIVACY IN THE DOCK

June 10th, 2010 by Anya Proops

It is a fundamental rule of our justice system that it should be administered in public (Attorney General v Leveller Magazine Ltd [1979] AC 440). In the criminal justice system this rule generally operates so as to require individuals who are charged with an offence to give their home address in open court. But what is the position if the accused claim that confirming their address in open court will expose them and their family to attack? Are they entitled to demand that their address be given in camera? This is an issue which was recently posed in the case of R(Harper) & Anor v Aldershot Magistrates Court & Anor [2010] EWHC 1319 Admin. In this case, two senior police officers who had been charged with the offence of misconduct in public office sought to judicially review a ruling of the Magistrates Court that they must each confirm their address in open court. The officers, who had been suspended from duty, claimed that the ruling was unlawful because there was a real and genuine fear of reprisal and the safety of the officers and their family was at risk. The Court rejected the claim on the basis that any fears which the officers may have had were unreasonable, particularly because publication of their address would not in fact enhance any risk that they faced (notably, the addresses could simply have been accessed through the electoral roll). In reaching the conclusion that the ruling was lawful, the Court took into account not least Lord Diplock’s judgment in Belfast Telegraph Newspaper Limited’s Application [1997] NI QBD 309. In that case, Lord Diplock held that information may be withheld in criminal proceedings on the basis that this was necessary to serve the public interest in the administration of justice but that it could not be withheld simply in the interest of protecting ‘the private welfare of those caught up in that administration’ (at page 314F). The Court in Harper noted that there might be circumstances in which the individual’s well-being may overlap with the administration of justice such that the information can be withheld in the public interest. However, these were not the facts of the instant case. Notably, there is no analysis in the judgment of the application of Article 8 ECHR. Nor further is there any explicit consideration of the rights of the families of the accused. Query what role these considerations would have played if the facts of Harper had been less clear-cut.

INFORMATION LAW AND THE NEW POLITICS

June 7th, 2010 by Timothy Pitt-Payne QC

I gave a paper at the last 11KBW information law seminar, on the new Government’s plans for information law.  An updated version of the paper is now available here.  It takes account of the Coalition’s programme, published on 20th May.

The new Government is putting forward a number of proposals for disclosing public sector information on a regular and routine basis, rather than on request:  for more detail see this posting on the official website for the Prime Minister’s office. On 4th June 2010 the Government disclosed a considerable amount of information from the COINS database (standing for Combined Online Information System) relating to public spending in 2009/10.  In total there are thought to be over 3 million separate items of information in the new release.  See here for the raw data; and see here for a tool designed by the Guardian, intended to help navigate the newly released information.  No doubt the COINS release will lead to a number of follow-up FOIA requests relating to specific items of expenditure; it will be interesting to see how those requests are handled by Government departments.